National Wellbeing and Engagement Forum

Advocating a 100% Fresh Assessment in All but Name

Advocating a 100% Fresh Assessment in All but Name

“Isn’t it nice to think that tomorrow is a new day with no mistakes in it yet?”
― L.M. Montgomery

Here’s the problem. A force brainwashed SMP won’t say a medical examination has occurred without seeing the former officer stagger into the office with bulging* Lidl bag (other supermarkets are available) with papers sticking out of it. *Note: More than likely the physical carrying of such bag will be used as sly evidence of substantial change.

We don’t know if it had the words ‘all my medical records ever, since birth’ written in Magic Marker on the side of the bag. Anyway, a little later, the SMP says a mild bout of flu when 6 years old is the real cause of the missing limb and subsequent PTSD, and causation is revisited.

Later again, surprise is expressed that the SMP had been able to get through with his primitive bag of tricks. In this new-age we are continually exhorted by HR minions such as  Staffordshire’s Andrew Colley that it’s not the force that wants the medical records, it’s the SMP.  Always the SMP.  ‘Our hands are tied!’ says Colley, the doctor is a doctor, he can ask for whatever he likes.  Don’t shoot the messenger … nothing to do with the PPA (honest ‘guv).

We are told to be vigilant on disclosure of sensitive personal information, so why wasn’t the SMP told he can’t have what he’s not entitled to? Did nobody think it looked a bit suspicious?  That the question of what happened prior to the last decision is time-barred and irrelevant.  What maybe reasonable to a nice and pleasant doctor is not lawful in the world of the Regulations where nice and pleasant doctors are as rare as unicorn droppings.

We have the feeling we know the answer to that. Just think of the howl-round, the furore, if the SMP decided to say the person should not have an injury award in the first place or said the previous decision wrong. This would be a clear breach of Law Court of Appeal in Metropolitan Police Authority v Laws and the PMAB [2010] EWCA Civ 1099, in which it was held that the SMP was not entitled when conducting a review under regulation 37 to re-open clinical judgements as to causation or apportionment made in earlier decisions under the 2006 Regulations, and had merely to consider whether the degree of disablement had substantially altered.

But by demanding full medical records from birth, this is exactly where we are, right now. Pinned to our seats by perceived medical decision immunity, as the train enters the darkness of the tunnel of the Laws case law, next stop a zero percent band one.

Forces like Staffordshire are trying to bypass Laws and revisit causation by pointing the finger at Dr Vivian by proclaiming that it’s not them (the police pension authority, PPA) that is demanding full medical records, it’s Vivian – and Vivian is a doctor, and all doctors are nice and pleasant and wouldn’t breach the law.  The flaw in this is the SMP, as a delegated decision maker, is synonymous with the PPA.  They are not two separate entities … one is culpable for the other.  What the PPA can’t do, the SMP can’t do.

But the “let’s look at full medical records from birth” is when the SMP brings in other illnesses even when there are no said illness – such as age! (We aren’t joking here, this recently happened). And the reduction is formalised behind the mask of so-called expert medical opinion.

Where did this process of radicalisation start, and what has had done to counter it?  Our blogs shine a light and the narrative is clear:  the Regulations do not support the interpretation that is placed upon them by police forces.  They get it wrong and that’s why they continually lose in judicial reviews.

The National Well Being & Attendance Forum sets its people apart from the rest and, in all too many cases, this apartness leads to a hatred of the function of the Regulations:  to provide those injured on duty with an injury award.

NWEF prefers to think the Regulations as a means to stop those injured on duty from getting an injury award.

The NWEF September 1st 2017 minutes are a case in point.  The minions in attendance obviously, quite rightly, have the willies about consent because they get the consent issue so wrong it hurts.  They talked about being GDPR ready (the GPDR is the new General Data Protection Regulations and is the new legal framework for data protection coming into force in 2018) but just prior they chat about the SMP can have anything the SMP asks for. NWEF says:

The general view was that it is the SMPs process so it is up to the SMP to direct what information or evidence they require,

We’ve read the GPDR and having ‘everything’ ever, because ‘everything’ is asked for, and not giving ‘everything’ will be seen as non-compliance and dealt with by punitive action, doesn’t seem to fit.  Actually enough faux understatement, let’s not beat around the bush; it’s unlawful.

And the questionnaire!  Oh my, the questionnaire.  Even though a 2017 consent order against Merseyside touched on this as well as full medical records from birth, NWEF still thinks a questionnaire is a legitimate means to fulfil the comparison test.

3) Refusing to complete a questionnaire for the purposes of Reg 37(1)
It was felt the exchange of information between the pensioner and SMP is essential to identify substantial change.
There was comment that the case of Laws set the principle that a case cannot be referred for degree of disablement to be reviewed without evidence of substantial change; the questionnaire assists with the gathering of evidence.

Let us quickly mention that the purpose of a review is never to fish for change to find evidence for a reduction and that a questionnaire is an invented device and is outside the statutory framework.  But let us roll with the juxtaposition of the Laws judgement and whether the questionnaire assists with the gathering of evidence.

Surely for the questionnaire to be a tool in the way NWEF suggests, there will have to be two questionnaires.  One completed on a previous date, and one completed in the present day. And then the answer to the questions could be balanced against the previous answer.

But no … there is only ever one questionnaire.  So tying to mask this unlawful device as permitted by Laws is just probably the worse thing ever written about anything to do with the Regulations. Ever.

Feel free to read the rest of the September minutes.  Have your tutting hat on.  You will be doing a lot of tutting!

 

Quasi-Judicial: What It Is & What It Isn’t

Quasi-Judicial:  What It Is & What It Isn’t

“Who are you to judge the life I live?
I know I’m not perfect
-and I don’t live to be-
but before you start pointing fingers…
make sure you hands are clean!”
― Bob Marley

Some SMPs have acquired a fundamental misunderstanding of what is meant by them acting in a quasi-judicial capacity when conducting their part in a review of the degree of disablement in respect of the injury pension of former officers.

They have gone so far, in some instances, of thinking they have the power to direct IOD pensioners to do certain things – like handing over their medical records from birth, or travelling many miles to attend an appointment at the convenience of the SMP. Some try, (and fail) to forbid the pensioner having a friend, supporter, carer or chaperone present during a medical interview or examination. Some, in the grip of their delusions, have taken to calling a medical examination a ‘medical inquisition’. One SMP even thinks she is a Judge and is in the habit of ordering all and sundry to do her bidding, but we discount the rumours that she has a wig and ermine trimmed robe which she secretly wears in the bathroom at home.

The plain fact is that SMPs and even Police Pension Authorities, under whose authority they act, have no power to command or demand anything of a police injury on duty pensioner.  Merseyside police recently came a cropper on this exact same point by capitulating on a judicial review.  Ron Thompson of Haven solicitors said,

“This was an unnecessary and totally avoidable dispute. All the Chief Constable’s staff had to do was to read the wording of the Regulations to see that they had no power to force former officers to hand over medical notes or fill in questionnaires, particularly in advance of any decision to make a referral to the SMP. The lesson from this episode for Forces is that no amount of misguided “advice” from the National Attendance Management Forum can change the meaning of the words of the Regulations.
Any other Force that tries this tactic can expect to be served with the same type of legal challenge”

Yes, you read that right. No power whatever. If any HR manager, SMP or Police Pension Authority thinks otherwise, then IODPA has just this to say to them – ‘See you in court.

At review, a SMP is required to make a decision. That’s it. That all parties are bound by the final decision (final if not appealed) is where the quasi-judicial bit comes from, and that is where it ends. The SMP’s decision is an action taken on behalf of a public administrative agency, the police pension authority, and a SMP is obliged upon to decide a question as the foundation for official actions. In plain words, they make a medical decision, and hand that decision to the PPA. A decision, only once made and so final that the PPA has to act in accordance with it, and is forbidden to alter, change or dismiss or get HR to pipe into a magic calculator to spit out a band one, is de facto a quasi-judicial decision. The decision.  Not the process or the process maker.

But let us delve into the murky world of SMP’s enthusiastically failing to act as an independent arbitrators. It is a fundamental requirement that any decision-maker should be impartial. ‘Disinterested’ is the word – have no axe to grind, nothing to gain or lose by making a decision, neither having the interests of the pensioner or the PPA in mind, but being a servant of the law, medical ethics and of reason. Making a decision on verifiable facts and on professional opinion, and being prepared to explain and justify that decision.

We would like here to focus on the antics of one SMP – Dr Charlie Vivian, who works as SMP for Staffordshire PPA (police pension authority). (A reminder to readers – the PPA is none other than the Chief Constable alone.)

Dr Charlie Vivian says the process, his process,  is quasi-judicial, but we are not convinced he understands what that means. His actions indicate he thinks he has unbridled power, including the right to discard the normal legal and ethical standards of conduct required of a decision-maker.

At a rare and brief resumption of normality, the National Wellbeing and Engagement Forum (formerly the NAMF) reconvened in September after their lack of members hiatus, and Dr Vivian sat at the same table as Andrew Colley of Staffordshire HR.  This is unacceptable. Wouldn’t it be quite a thing for a judge or a coroner to seen hobnobbing over lunch with representatives of the prosecution and having discussions during the course of which the acceptability of process is discussed in the absence of the defendant and the public?

This behaviour would not serve the best interests of open, transparent justice but it’s sadly happened before. Health Management Ltd. has a Home Office contract to run police medical appeal boards but they only recently realised attending NWEF/NAMF compromises their independence. Or perhaps they knew all along but thought that nobody would notice, or care.

Their realisation of the bias was minuted in the June 2016 NAMF conference


This never stopped the chair of HML (and therefore head of all PMAB panelists) regularly attending NAMF himself whilst on the side labeling himself as a consultant of HML and giving speeches to the Association of Local Authority Medical Advisors (ALAMA) on the pitfalls SMPs face at PMAB hearings.

Take a look at this agenda of a 2012 ALAMA conference

Wallington spent 45 minutes advising SMPs about how to avoid the pitfalls for the unwary at a PMAB.  Perhaps Wallington should perform the same service for those disabled former officers who are forced to attend PMABs because of an unjust SMP decision?

The Home Office has declared via a freedom of information request that very same Dr Wallington is the only PMAB panel member to attend a NAMF conference.  Just look at question 5 found towards the bottom of this request:

34242.pdf

This is an HTML version of an attachment to the Freedom of Information request ‘ Police Medical Appeal Board’.

Vivian claims he acts in a quasi-judicial capacity, but like Wallington, the company he keeps seems to suggest he is in cahoots with one side to the detriment of the other.  What legal precedent does Dr Vivian rely on in the quasi-judicial matters in hand? First off, he thinks he is a coroner.  Secondly, he thinks the Scottish high court judgement of Rooney v Strathclyde 2008 empowers him to be a coroner.  The Rooney case is not dissimilar to the England & Wales judicial review of Sidwell v Derbyshire 2015.  Both say a court only has limited scope to interfere with medical opinions supporting decision to compulsorily retire a police officer.

We’ve delved into the inner workings of the Internet and found the Rooney case.  Here is it is:

MATTHEW ROONEY Petitioner; against STRATHCLYDE JOINT POLICE BOARD

There is the not insignificant matter that Scottish courts have no judicial precedent over England & Wales as Scotland has a different legal system.  Judicial precedent refers to the set of rules specifying when a court must have regard to, or consider, the decision of another court, and the circumstances in which the decision of that other court is binding. What is decided in Scotland applies only to Scotland.

Quoting a Scottish court decision to support a view is rather like claiming that as they drive on the right in Canada, then it is OK to do so in Burton-on-Trent.

Vivian also has the problem that the Rooney judgement, read in its entirety, does not give SMPs in Scotland the quasi-judicial power he purports it does.  In fact the only reference to the term “quasi-judicial” comes from an extract from a letter written by the solicitors for the Medical and Dental Defence Union of Scotland (MDDUS) to palliate the position of the SMP, a Dr Patience.

The purpose of the letter was to inform Rooney’s solicitors that the MDDUS was content that Dr Patience’s decision should be defended by Stathclyde Joint Police Board,  and that Dr Patience would not therefore be taking part in the proceedings.

The judges in the Rooney case didn’t say, as claimed:

The regulations required him to act in a quasi-judicial capacity and to construe complex regulations that have been the subject of repeated litigation in recent years, and to grasp legal distinctions of some nicety … However, he did not have the benefit of a legally qualified clerk or assessor.

The above was actually quoted in this letter from the SMP’s professional body, the MDDUS.  So Dr Vivian is using a quote from a letter, referring to a Scottish court case, from a professional body representing the very doctor whose decision is being challenged, and is claiming this as a legal precedent and therefore case law!  Wow … just wow.

We don’t expect our lawyers to be experts on medical matters, and neither do the Regulations expect SMPs to be experts on legal matters. They have to follow the Regulations, and if they need guidance in that respect, they should be able to rely on their PPA. As so many PPA’s have little to no grasp of the requirements of the Regulations, and as the Home Office has decided not to issue any more guidance, SMPs have been turning to the biased and plainly wrong opinions presented by the likes of Nicholas Wirz, via the College of Policing and the NWEF.

That is a recipe for disaster. Just as our wrong-headed driver in Burton-On-Trent would discover.

So back to our quasi-judicialness.  The decision of a SMP is final and is binding on all parties (save if appealed via Regulation 31 or Regulation 32) or challenged by way of judicial review.  This is the only meaning implied by the Regulations in a judicial sense.

Scotland has The Crown Office and Procurator Fiscal Service which is the independent public prosecution service for Scotland and is an inquisitorial legal system where the court or a part of the court is actively involved in investigating the facts of the case.  England & Wales does not have anything remotely close to this.

Dr Vivian, the NWEF, and Wirz should not be quoting Scottish law to bolster their biased and self-serving perversions of the Regulations. That itself is bad enough, and is unprofessional in the extreme, but we are appalled to see them use these false arguments to attempt to bully and bluster vulnerable disabled people into compliance with their extra-regulatory demands.

The role of a SMP is not quasi-judicial.  The decision of a SMP is quasi-judicial insomuch that it is a decision which invokes finality and has to be implemented. Dr Vivian, please take note.

 

 

 

 

 

NWEF Conference falls victim to lack of attendees

NWEF Conference falls victim to lack of attendees

National Wellbeing & Engagement Forum – NWEF (Formerly NAMF)  June 2017 didn’t happen!

A brief trawl of the Foreign Office’s travel advice for HR types thinking of paying a visit to Newcastle City Centre Police Station, Newcastle Upon Tyne Friday 9th June 2017 at 10am probably didn’t warn people that’s it’s not the best idea to attend a NWEF conference hosted by Northumbria police – with the ever present threat of catching a serious infectious disease which, once it has control of a person, causes them to spew forth incoherent babble from the bowels of the voicebox.

National Wellbeing & Engagement Forum – NWEF (Formerly NAMF) JUNE 2017 – a Freedom of Information request to Northumbria Police

Please provide full disclosure of the following: National Wellbeing & Engagement Forum – NWEF (Formerly NAMF) – Northumbria Police The meeting was held Friday 9th June 2017 at 10am, Newcastle City Centre Police Station, Newcastle Upon Tyne.

Of course, we don’t think the the meeting was cancelled due to a contagious lurgy.  All HR minions love to go on an extravagant all-expenses paid junket.  So why didn’t the June 2017 NWEF-fest go ahead?  Apparently no-one wanted to go!

In response to your request above, The National Wellbeing and Engagement
Forum (NWEF) meeting scheduled for June 2017 was cancelled due to the
limited availability of members.Northumbria Police Data Protection and Disclosure Advisor

Perhaps the acolytes of Wirz are becoming disbelievers…

 

 

 

Update: Fisher Revisited

Update: Fisher Revisited

Oh dear.  Nicholas Wirz, Northumbria’s solicitor, isn’t getting any love from his fellow legal practitioners.  Indeed they seem to totally contradict Wirz’s own interpretation of the Fisher judicial review, the one that he lost, and at the same time these real legal eagles agree with our own explanation.

Let us remind you what we said:

The Fisher Judgement & Uninjured Earning Capacity

And here is what the unprofessional lawyer Wirz told NWEF delegates in March 2017:

Ground 1 of the Fisher judgement related to comparator and the use of Police Salary, the high court judge quashed the PMAB determination for the reasons that the comparison between injured and uninjured earnings was not analysed sufficiently and there was no rationale as to why police officer salary was not used.
Clarification is provided by this judgement that police officer salary would be the correct comparator where the former officer has only one qualifying injury and is otherwise healthy

Sarah Simcock writes in UK Police Law Blog, a blog of the Serjeant’s Inn barrister Chambers, that it isn’t about being otherwise healthy as Wirz told the NWEF conference, and it clearly isn’t about always using the police salary as the uninjured comparator – like we say, someone could have been underemployed as a police officer and their uninjured earning capacity can be a lot higher.  We used an example of a maxillofacial surgeon.

And if you read all of what Sarah and her fellow professionals of barristers and lawyers actual think … it’s fair to say you will decide that our explanation is closer to the truth.

The Fisher decision does not obligate an SMP or PMAB to use the officer’s police earnings prior to injury in all cases, it merely stresses that they must form part of the consideration or act as a starting point. If there are good reasons in a particular case for a departure from that level of earnings it is permissible, but it must be objectively justified on the facts of the particular case and on the evidence available.

What is crucial is that there must be sufficient reasons provided to justify a decision in relation to the level of a particular officer’s uninjured earning capacity.

 

Assessment of uninjured earning capacity in relation to a police injury pension

The recent decision of the High Court upon an application for judicial review of a Police Medical Appeals Board (‘PMAB’) decision in the case of R (Fisher) v (1) Chief Constable of Northumbria (2) PMAB [2017] EWHC 455 (Admin) highlights the pitfalls in the assessment of a former officer’s uninjured earning capacity when reviewing the level of an injury pension under regulation 37 of the Police (Injury Benefit) Regulations 2006.

We think people should stop listening to Nicholas Wirz.  Northumbria could save millions by paying him to stay at home in a locked broom cupboard.

 

Otherwise Healthy

Otherwise Healthy

“A committee is the only known form of life with a hundred bellies and no brain.”
Robert A. Heinlein, Methuselah’s Children

The March 2017 NWEF conference displayed a clear example wherein decision making becomes internally focused, defined by the needs and beliefs of the group.

Everyone nods their head and no-one in the audience calls out “that doesn’t sound right“.   Called “groupthink” it critically clouds decision making and of course the point about groupthink is that, if you are part of the group, you don’t realise that it’s there until it’s too late.

The legal advisor to NWEF, a person at the heart of the Fisher judicial review, harped on about the clarification given in the hearing he lost (note he says it was the PMAB who were the last decision makers, but this review of Mr Fisher’s injury award had Wirz’s fingerprints on it since 2008)

NW [Nicholas Wirz] provided an update on the recent high court judgement Fisher v Northumbria and PMAB. He highlighted the outcome of the judgement confirmed the case law brought about in the cases of Anton, Ayre and Walther (1).
Ground 1 of the Fisher judgement related to comparator and the use of Police Salary, the high court judge quashed the PMAB determination for the reasons that the comparison between injured and uninjured earnings was not analysed sufficiently and there was no rationale as to why police officer salary was not used.
Clarification is provided by this judgement that police officer salary would be the correct comparator where the former officer has only one qualifying injury and is otherwise healthy.

Look at the sentence highlighted bold.  The Fisher JR doesn’t say the police salary is the only correct comparator. It says the police salary should be the start and, if the tests have been passed for the quantum to be calculated, as much effort should go into defining the uninjured as the injured earning capacity.  Uninjured earning capacity could be higher if the person was under-employed as a police officer.  We examined this with an example of an Oral and maxillofacial surgeon  in this blog.

But let us examine the other nonsense about being “otherwise healthy”.  What is Wirz trying to imply here?

glomerular filtration rate (GFR) is a measure of how efficiently kidneys filter the waste from our blood. Healthy young people commonly have GFRs of about 120. A GFR lower than 60 or another marker of kidney damage for more than three months means chronic kidney disease (CKD). At which point, patients become scared. 

But wait a minute. Kidney function declines with age in almost everyone, and the proportion of older people with GFR readings below 60 approaches 50 percent, studies have found. As the older adult population grows, the prevalence may rise even higher.

So there is an age-related decline in kidney function; however, not all individuals will develop CKD with advancing age and not all patients diagnosed with CKD need to worry about dialysis, because that’s what they associate with kidney disease.

When you’re told you have a disease, that’s a bad day.  A doubly bad day for you in the warped world of Wirz:  On the day your kidney disease was diagnosed, you woke up that morning with at least an uninjured earning capacity of a police officer – you went to bed without it, indeed supposedly with no uninjured earning capacity and therefore a default reduction to a band one.  

Should a diagnosis of CKD effect your injury award? No? Yes? Maybe…?

Nicholas Wirz thinks it should because now you are not “otherwise healthy”.

We can hear Wirz shouting at us!  ‘Don’t use your kidney disease example to misrepresent NWEF’s position’.

A “straw man” is when an argument is put forth —usually something extreme or easy to argue against—that is known that the opponent doesn’t support. You put forth a straw man because you know it will be easy for you to knock down or discredit.  We can’t find a word that describes when the argument actually pulls a punch compared to the true position maintained by the opponent – some sort of inverse straw-man.

Chronic Kidney Disease? Pah!, Wirz trumps that with neurological disease, namely Parkinsons.

So let us highlight the guidance Wirz has been providing to SMPs since 2014.

Wirz writes:

e.g. if an individual were to have developed advanced Parkinson’s disease since the last review, such that he was unable to work by reason of the symptoms of that disease alone, then the uninjured earning capacity should be nil. Alternatively, if an officer were to have become generally less fit by reason of advancing age, such that he was no longer able to undertake a physically demanding job, or no longer able to work full time, then the uninjured earning capacity would be reduced accordingly.

“[…] then the uninjured earning capacity should be nil.” That line is worth repeating.

The uninjured earning capacity is the alternative universe “you“.  The you that wasn’t injured; the you that excelled at life; the you that aspired to be the best and had no injury holding you back; the you back in the day when the world was your oyster. It is not the you in the real world, as you are now with co-morbidities. Co-morbidity is the presence of one or more additional diseases or disorders co-occurring with (that is, concomitant or concurrent with) a primary disease or disorder.

Is Wirz a time-lord?  Can he categorically say you would have suffered from Parkinsons (or chronic kidney disease) HAD YOU NOT BEEN INJURED? Maybe the trauma led to the additional disorders?  Who knows.  This is as ridiculous as it gets.

Do you see what Wirz is trying to insert into the brains of those who listen to him?

A former officer has physical injuries all caused on duty.  His injuries have only deteriorated and he has struggled with chronic pain and mental health issues directly related to the chronic pain.  He has taken tricyclic antidepressants for long term analgesia.  He has chronic kidney disease because of the decades of reliance on non-steroidal anti-inflammatory drugs.

On his fifty-eighth birthday, he is diagnosed with early onset of Parkinson’s disease.  Just when he, and his family, needs his injury pension, Nicholas Wirz wants to make him a zero percent band one and remove thousand of pounds from their income.

But his duty injury is no better!  Is he now two hundred percent disabled? Yes, he has a further disability but this has nothing to do with his permanent disablement for carrying out the full duties of a police officer.  In effect, to reintroduce any concurrent disablement is tantamount to revisiting causation and apportionment.  Such lawyer tricks have been already declared unlawful.

Wirz wants to carry his corruption to the high court in order to “clarify” how things, in his world, should be.  A vulnerable person will be taken through hell just because Nicholas Wirz thinks the law needs to be tested.

This is what IODPA is dealing with.  If only other organisations, those there for the support of those injured on duty, will take up the clarion call and help us to stop these abuses.

 

 

 

 

The Unmasking of Cheng’s OHS Partners

The Unmasking of Cheng’s OHS Partners

“Power attracts the corruptible. Suspect any who seek it.”
Frank Herbert, Chapterhouse: Dune

What shocks us the most about the National Wellbeing & Engagement Forum (NWEF previously NAMF) is that occasionally it doesn’t even try to hide how biased it, and some of it’s attendees, actually are.  For example, Nicholas Wirz’s opinion of the Fisher judgement in the March 2017 minutes.  Wirz says the uninjured comparator has been clarified as being the police salary when “the former officer has only one qualifying injury and is otherwise healthy. Oh my! Well… that’s a jump.

The author of this blog was sat in the public gallery at the Fisher judgement throughout the hearing and what Wirz claims to be the opinion of the court was never said.  The court clearly stated the police salary should be considered as the lowest starting point – nothing was touched on about being otherwise healthy; Wirz has made that bit up! Just in case there has been a lapse of memory, the transcript has been read and reread.   Nope, nothing like Wirz’s take on it there. Typical example of Wirz’s ability to put a spin on things to suit his own purposes – which, in respect of the NWEF is to mislead and misdirect.

We know exactly what Wirz is trying to infer here and will talk about his “otherwise healthy” in another blog – he is truly the gift that keeps giving blog material.

The Forum’s prejudices are so obvious as to be blinding – they obscure its baby steps towards being self-proclaimed experts in the Police Regulations. There is nothing certain elements within the NWEF would like more than to see regional units set up to administer all aspects of police ill health and injury pensions, from grant to grave.

These units would be controlled from the centre by the usual suspects, including Wirz, who would carefully select SMPs whose decisions would suit their paymasters. The current police pension authorities would be happily sidelined. They are all, bar the Met, City of London and the Police service of Northern Ireland, local Chief Constables. Everything would be delegated to the regional centres.

IODPA is unhappy with the built-in conflict of interest having Chief Constables in charge of injury pensions – some have shown a determined desire to treat them as a drain on scarce resources rather than honour the scope and purposes of the Regulations. However, should regional units come into being, there is very real concern the Home Office would lurking in the background, pulling the strings.

Thus, even those decent forces which have tried to honestly administer injury pensions would be compelled to see its disabled former officers face the horrors of medical assessments by dubious SMPs who would be under instructions to reduce pension payments by whatever means they think they can get away with.

Like an invading species, NWEF is taking up the ground vacated by the good, honest administrating civilians as they leave in disgust or retire.  Affected, or should we say infected forces are left with a skills gap allowing NWEF to doorstep the senior ranks saying they are the answer.  The warped an unlawful NWEF view of how the Regulations should be applied then becomes the new norm, and NWEF are a step closer to changing the culture.  Seeing the progression gradually happen, when it can be so easily countered, frightens us.

An example of the creep is evidenced in those who go to NWEF conferences.  The most recent conference saw a mob-handed turn-out by Staffordshire. Coincidentally this was at the time when they were forming the intent to start a mass review program of injury pensions.

There are many other things which bother us about those who attend the NWEF’s meetings, but one thing which stands out a lot at the moment is the attendance of an individual named Sally Waterlow.

She is listed as an attendee in September 2012, March 2014, December 2015, September 2016 and March 2017.

Who is she, and why are we interested in her?  Back in 2012 it appears she worked for the Metropolitan Police in a HR role, with some responsibility for ill health pensions.

The September 14th 2012 minutes contain this statement:

Sally Waterlow (SW) from the Metropolitan Police advised that they were considering withdrawing the services of the SMPs within their force altogether.

Indeed, the Met did decide not to hold further regular reviews of degree of disablement in regard to injury pensioners, and we know that one SMP, a Dr William Cheng did not have his contract renewed. Our Sally then pops up as attending later NAMF conferences – this time as a representative for a company called OHS Partners, with the job description of ‘Advisor to SMP’.

Here is a picture grab of the September 2016 NWEF minutes:

OHS Partners is a company which lists the profile of a single SMP, namely said Dr William Cheng. In fact, Dr Cheng is the company. OHS is merely a convenient, and no doubt tax-efficient, vehicle for him to tout his particular brand of medical services. He is the sole director – a group of four fellow-directors all jumped ship in November 2015. Perhaps they could see the stormy, rocky shore ahead.

The Internet domain registration of ohspartners.co.uk was submitted by a company called Partners Occupational Medical Services Ltd.  As mentioned above, the sole director of this company is William Cheng as can be seen by this director report.

For our Sally Waterlow to leave the Met and then join this tinpot company we can only suspect she would’ve had to been secretly lobotomised — perhaps by members of the NAMF’s impeccably fair and impartial board. In the dead of night. Silently, without remorse. Chloroform, a hacksaw, a scalpel.  Or she had an entirely rational, but highly dubious motivation

Our guess is that the NWEF chair, Lesley-Ann Knowles, will not give a monkey’s about the fact how it looks when Sally was given actions by the NWEF to introduce NWEF to her own contacts.  In 2014 Sally was actioned to approach her own ‘friend’ with an ‘in’ to the Home Office, minuted as:

Finally, Sally Waterlow advised of a useful contact to the group, Avril Cooper, who is advising the Home Office from a practitioner’s perspective.

It seems Avril Cooper was in 2014 Head of Occupational Health with the Metropolitan Police, as she appears as such in the list of attendees to a NAMF meeting in June of that year. In 2013 Avril was representing ACPO on the official side of the now defunct Police Negotiating Board at a Police Arbitration Tribunal. She was there with Peter Spreadbury, who is the Head of the unit within the Home Office which deals with all matters concerning police injury pensions.

Sally Waterlow’s ‘friend‘, Avril Cooper, is also mentioned in Police Advisory Board’s 28 July 2016 meeting held at the Home Office’s address of 2 Marsham Street, London, SW1P 4DF.

At the SAB meeting of 8 July PFEW shared their paper in response to this review. It was also agreed that Avril Cooper (MET) should be invited to share with the SAB findings from a Metropolitan Police survey which was first to be shared with the National Attendance Management Forum.

We would also figure that Ms Knowles, who is employed as a HR director for Northumbria Police, wouldn’t really care that Cheng has been given a contract for work at tri-service conglomerate of Northumbria, Durham and Cleveland police forces.  Just look at this contract, valued at £576 000, and who it was awarded to:

Name and address of economic operator to whom the contract has been awarded


Partners Occupational Medical Services Ltd

208 Green Lanes, Palmers Green

London

N13 5UE

UK

william.cheng@ohspartners.co.uk

+44 2079287080

Oh! Dr Cheng with an ohspartners.co.uk email address …  quelle surprise!

So, we have Sally Waterlow and Dr Cheng clearly linked in some way. And Sally has contacts within the Home Office, which means so does the supposedly impartial independent medical  assessor, Dr Cheng.

Ms Knowles would also be sanguine, hunkered down behind that familiar defence of: ‘If IODPA think we’re biased then we must be getting it right’ — a self-justifying falsehood if ever there was one.

Knowles will probably dispatch some overpaid, half-witted, oleaginous middle-managing  gimp to placate the complainants that to award a contract to the boss of someone who attended her own conferences stinks; while assuring anyone asking that they are wrong in every respect and that, within NWEF, everything is for the best in this best of all possible worlds. As it always is.

And yet the complainants are right, surely.

The horror when this unexpected eventuality dawns upon someone that can actually do something about this will be our greatest pleasure of the year.

Until then we will point to the truth, and NWEF will continue it’s embarrassing trajectory to oblivion.

It was pretty much ever thus with the NWEF.  You may have heard  the comments made by some which claim our coverage is guilty of bias.  We can take that hit  – we reveal the other side to the NWEF coin and we always provide links to the source.

Our view is let the reader decide, so we are never inclined to take the complaints very seriously. But a senior ranking apparatchik said once: ‘What you have to understand, is that only the bad and the mad attend NAMF.’ That was from a senior member of a force that refuses to send delegates to NWEF, since you asked.

Stories of bureaucratic profligacy and incompetence will continue.

The bias we report is so evident, so obvious, so blinding that it sometimes obscures the fact that the awarding of the Cheng contract has a distinctly criminal whiff about it.

We thought you should know about these close links – please come to your own conclusions why Sally Waterlow fervently goes to NWEF conferences . . .

 

 

The History between Wirz and Staffordshire Police

The History between Wirz and Staffordshire Police

It is as though instead of a dog wagging its tail the tail should wag the dog. And all Nature would stand aghast before such an improper spectacle.” – Fräulein Schmidt and Mr. Anstruther by Elizabeth von Arnim

Another knife-attack was thwarted last week in Westminster. Overnight, on the same day, there were anti-terror raids in Kent and London. These were unconnected, but police say that they have foiled an ‘active terror plot.’ All this will blend into the background soon, as much as last month’s attack in Westminster already has. Not because we don’t remember anything, but because we never learn anything.

Behind the scenes there are police officers working tirelessly to protect the public.  But other, ill intentioned people within the police service itself are also working behind the scenes. They are a cabal of individuals who are determined to see those same officers in financial peril if they are ever injured on-duty;  even though legislation exists to protect those who protect us, if the worse happens to them.

Today we are going to talk about two particular individuals, both of whom have history in the recent scandal started by Staffordshire Police in their mass review program.  The frequency these two names appear throughout the saga of injury awards is clear proof that lessons have not been learnt.

Back in 2008 Staffordshire was developing a serious case of frost bite in it’s cold feet over the zealous application of the infamous Home Office guidance 46/2004 which called for severely disabled former police officers to have their income instantly dropped by thousands of pounds just because they had reached 65 years of age.

The small legal minds of Staffordshire Police were in a bind.  “What to do?”, they mulled.  “We really want to do this. Think of the money we we can save.  But something about this guidance doesn’t smell right”.  Like any proud member of NAMF at the time they reached out to the one person they thought could provide some legal incantation to help clear the way..

Introducing the first of our dastardly duo:  Nicholas Wirz, principle solicitor of Northumbria Police.

Michael Griffiths was Staffordshire’s force legal advisor at the time and, on behalf of the force’s director of resources, Graham Liddiard, Griffiths wrote to Mr Wirz on 27th September 2006 to ask whether Wirz had an answer to their concern that, by reviewing all with the intention of reducing everyone not on a band one, that they would breach discrimination law.

Specifically Griffiths asked:

Our particular concern at this time however relates to the potential effect, if any,  of the soon to be implemented Employment Equality (Age) Regulations 2006  upon the Home Office Circular.
My particular purpose in writing to you at this time is to ascertain whether or not you are in possession of any external legal advice regarding the matters referred to in your report

The report mentioned above is this NAMF guidance authored by Wirz and another grubby individual named Trevor Forbes.

Forbes is number two of our individuals of note.  He is a former Inspector who joined ranks with Wirz and ran with the NAMF wolves, Forbes still to this day works as a freelancer for some forces defending their position in Police Medical Appeals Boards.

This NAMF guidance seems quite detailed on the Home Office invention of ‘cogent reasons’ doesn’t it?  It is as if the Home Office authored it itself… or more likely the Home Office was using Wirz and Forbes as proxies.  Perhaps another conspiracy theory is HOC 46/2004 was Wirz’s idea all along and he was the one who sold it to the Home Office.

Whatever the truth, back in 2006 Wirz and Forbes had a prominent role in the roll-out of unlawful guidance.  Wirz happily used his position to slowly but surely influence decisions.  He advised on every matter on reviews of injury awards that came to his court. This meant that every decision made in relation to Police Injury Benefit Regulations was influenced by Wirz as early as 2006.

We can’t find a comparable analogy of a qualified solicitor surviving the fall-out or pursuing an agenda that was later found to be unlawful, and yet managing to remain in practice.  Whether or not the guidance was actually all his, or not, is irrelevant.  The report referred to by Staffordshire shows that Wirz swallowed it whole and sung it out from the pulpit like a demented proponent of televangelism.

It’s quite likely a police officer found to be championing unlawful processes with such enthusiasm would find themselves on a gross misconduct charge.

Anyway, back to the Staffordshire and Wirz love letters.

Wirz obviously didn’t convince Messrs Liddiard and Griffiths.  They bottled it and capitulated to an ‘agreement’ signed by themselves, local NARPO and the Federation.

On the 6th October 2006 Griffiths wrote back to Wirz saying:

Thank you for your very useful letter of the 2nd October 2006 in response to my earlier correspondence. […]

I am pleased to note that it is not just ourselves who are of the opinion that the Circular causes a degree of confusion which may require litigation to resolve. I shall forward a copy of your letter to Mr Liddiard for his consideration.

So what did Wirz say to Staffordshire police?

This is the Wirz letter to Staffordshire’s Mr Griffiths in full:

Apparently no external legal advice had been sought by Wirz or by NAMF (National Attendance Management Forum now re-branded as the National Wellbeing Engagement Forum).  Wirz is the self-proclaimed authority in such matters so his arrogance probably prevented further legal examination of his mutterings.

Wirz starts his letter with this:

Thank you for your letter of 27 September 2006. I can confirm that I sought no external legal advice with respect to the matters contained in  the joint note to members of the National Attendance Management Forum dated 24 July 2006

Wirz then says without a hint of irony that it is OK to review when Staffordshire wants to reduce awards, but encouraging former officers to seek a self-reviewed review shall not happen due to the drain on resources.  He says:

Personally I believe an ex officer keeps the CRA, which applied at the time of an ex officers retirement, otherwise vast numbers of officers who have attained the old CRA and who are in receipt of injury awards will seek a review. No resources have been made available for this and the Home Office has not flagged this up

The highlight of Wirz’s assertions comes before his own definition of how compulsory retirement age can be used against a disabled former police officer.  Apparently, he didn’t have a clue.  In any case he doesn’t say whether Staffordshire should or shouldn’t concern themselves with worrying over discrimination and breaches of equality law:

As regards new age discrimination legislation, this, too, needs to be the subject of further guidance

An ambiguous lawyer’s answer if ever there was one!  Guidance begat guidance seems to be his mantra.  The cynic would say that no doubt Wirz would write the secondary guidance on the guidance, wrongly reassuring forces that there is in fact no breach of equality law.

But then even back in 2006, Wirz knew that forces like Staffordshire were guinea pigs and that he was walking on the wrong side of the knife’s edge.  He knew the work he encouraged would light appeals.  Realisation that anything Staffordshire does, as encouraged by people like Forbes and Wirz, will in all likelihood be challenged.

Wirz evens comes clean with this fact:

This matter will, in all probability, be resolved by the High Court when a case dealt with pursuant to 46/2004 is appealed.

Now that remark would be acceptable from anyone who hand no hand in the administration of police injury pensions, but is a remarkably incautious remark from a man whose influence over how injury reviews would be held was considerable. He seems to care not a jot that the Home Office guidance might be of dubious legal integrity. His attitude is to advise that administrators go ahead and possibly break the law. It is a gambler’s advice, not the carefully considered balanced view expected of a legal professional.

Indeed, Wirz’s prediciton was spot on.  The issue was indeed resolved in the High Court – to the considerable inconvenience of the pensioners involved.  The cases of Crudace, Slater and Simpson (along with a huge amount of Pension Ombudsman decisions) called Wirz’s guidance the unlawful perversion that it was..

So back to 2017.

Who is still the legal advisor to NAMF/NWEF? Answer: Nicholas Wirz of course.  Who’s force has lost yet another judicial review about the unlawful interpretation of Regulation 37?  Answer: Nicholas Wirz’s Northumbria.

And what police force is plunging head-first into another mass review catastrophe? Staffordshire.  NAMF/NWEF is still at the heart of the problem.

Wirz is the tail that keeps wagging the dog.  The lessons of the past have not been learnt.

The tentacles that spread out between Staffordshire & Wirz in 2006 are still clutching for  hand-holds on brittle ground.  This time it’s different though, as the lessons of NAMF has only been forgotten by those who listen to NAMF.  The wealth of information available from dark times show that the benefit of doubt no longer exists. Staffordshire is looking down the dark wide barrel of a blunderbuss, which is primed, loaded and ready to fire. Wirz must know that Staffordshire is heading for large amounts of trouble with its mass review ambition. It will be a costly and futile mistake. But, Wirz has not a care. He gets paid no matter what.

IODPA exists to stop the vicious gamesmanship of people like Wirz, who in their efforts to always try to push their own interpretation of  the Regulations, to the very great harm and distress of disabled former officers and their families.

We take no pleasure seeing Staffordshire squirm in its defence of its mass review program.  It’s all so unnecessary.  But sorry, Staffs, you can not defend the indefensible and hope to get away with it.

 

 

 

Wirz loses High Court challenge

Wirz loses High Court challenge

BREAKING: Northumbria and PMAB’s Regulation 37 methodology DEFEATED in a judicial review.
Fisher, R (on the application of) v The Chief Constable of Northumbria & Anor [2017] EWHC 455 (Admin) (08 March 2017)

Nicholas Wirz, Northumbria Police’s principal solicitor as well as the National Wellbeing & Engagement Forum’s (NWEF/NAMF) self-declared legal advisor, has suffered a humiliating legal defeat over his unlawful interpretation of comparators used by many SMPs and PMABs to calculate earning capacity.

A feature length blog on the implications of the Fisher v Northumbria judgement will follow soon.  This judicial review quashes the decision of a PMAB panel that, in 2016, reduced him from a band 3 to a band 1.  It is the culmination of a 11 year battle fought against Wirz and Northumbria police.

Shockingly this isn’t the first time Mr Fisher has had his injury pension unlawfully reduced.  The Journal (along with The Chronicle, it is part of the North East’s most popular newspaper group) printed in 2008 a feature concerning the odious vendetta of Wirz against this former officer.

In March 1998 The Journal reported that his injury pension had been reduced before, by £1200, only to be restored on appeal.  The article described how Mr Fisher was medically retired from Northumbria police after being called to the Kirkley Hall mink farm on the outskirts of Ponteland, Northumberland, to police an animal rights demonstration, when a cross-breed Rottweiler sank his teeth into his lower right arm. The animal had been fed on the remains of dead minks and Mr Fisher spent five days in hospital undergoing numerous emergency surgeries when the wound became infected.

He needed almost 40 stitches to the gash and his injuries were so severe he lost full control of the fingers in his hand.  This incident was the culmination of fighting the symptoms of PTSD after being injured in an on-duty knife attack in 1992.

The Chronicle recently published that on Wednesday 8th March, Mr Justice Garnham allowed Mr Fisher’s challenge against the Chief Constable of Northumbria and the PMAB:
Bitten policeman battles off bid to slash his pension

The grounds lost by Northumbria have implications on any SMP or PMAB decision where the earning capacity was based on comparative earnings as well as where the decision made fails to give sufficient reasoning to identify, at least, the basis for the medical authority’s conclusion on uninjured comparators.

We will keep our readers up to date on the ramifications and discuss how a reconsideration, or the Pension Ombudsman, can be used to relook at unsafe historical revisions to injury awards.

The decision of the PMAB has been quashed by Justice Garnham.  Points 1 & 4 (below) were won in favour of Mr Fisher and the PMAB decision has been overturned.  Points 2 & 3 failed but the judge made it clear in his judgment that a reasoned decision of uninjured earning capacity has to be made by the decision maker.  The corollary is that picking random jobs has to be justified and reasoned.

The PMAB, as a delegated decision maker on behalf Of the Chief Constable, made the following errors in reaching this decision:

  • The PMAB erred because it failed to use the Claimant’s potential police earnings as the uninjured earnings comparator;
  • Further the Chief Constable erred in back-dating the effect of the decision to 27 February 2015 and thus claiming that the Chief Constable had overpaid the Claimant when, in law, the decision only took effect at the date that it was made by the PMAB and so there no back-dating.

 

Reviews are just like painting the Forth Bridge, claim Merseyside

Reviews are just like painting the Forth Bridge, claim Merseyside

“Painting the Forth Bridge” is a colloquial expression for a never-ending task, coined on the erroneous belief that at one time in the history of the bridge repainting was required and commenced immediately upon completion of the previous repaint.  Such a practice never existed, as weathered areas were given more attention, but there was a permanent maintenance crew.https://en.wikipedia.org/wiki/Forth_Bridge

We have to laugh at the brass neck of Merseyside Police. According to Supernintendo Markay & Peter Owens the purpose of injury award reviews is to save money. That’s the stated, written into policy objective of the terrible-twosome who perform the dubious role of Merseyside’s medical retirement officers (MRO). They no doubt think that as soon as they have gone through the list and attempted to tar all IOD pensioners with the same band-one-brush, then hey-ho, it’s time to start up again to continue the misery, until everyone damn lot of them is whittled down to a band one.

The hypothetical question we have to ask is: once all are band one, will they wash the brush with white spirit, put the tar bucket in the shed and then leave the pensioners to peel and blister without applying any new coats ever again?  Will a single disabled former officer be left in peace, or will Merseyside ensure they all are reviewed regularly for the rest of their lives?

Both Markay and Owens are guilty of unleashing a form of barbarism against those injured on duty from this force, on the basis of a misconceived grasp of the Regulations, alternative truth, and spin. They intend, by their review policy to interfere in disabled people’s lives, to maintain them in a state of financial uncertainty, and to subject them to regular intrusive inquisitions, all in the name of their perverted and utterly unsupportable view of what the Regulations require.

They are determined, indeed, required by the force’s policy, which they seem to see as more important that the rule of law, to regularly demand that IOD pensioners declare any 10% increase in earnings. In the strange world occupied by Markay and Owens there is the belief that if someone sees a 10% increase in earnings then their degree of disablement will probably have altered substantially. However, they, very tellingly, have decided not to ask IOD pensioners to report a 10% decrease in earnings. They are not bothered by that inconsistency as fairness is not part of their game plan.

Do you remember this, below excerpt, from a letter penned by Owens to a person with an IOD award?  The bit about a salary increase is in red.  Note well that there’s nothing about a salary decrease.  In Owens’s world it’s a one-way-street with skills, and earnings dictating the degree of disablement. Leaving aside that the Regulations speak of the capacity to earn, not what might result from that capacity, we see again the one-sided, biased, money-saving objective. Gain a skill and your degree of disablement must have increased. No mention of skills eroding over time due to lack of opportunity to keep them honed and current. On this one way street, there is no traffic in the other direction. Skills can be acquired but never lost, earnings can increase but never decrease, co-morbidity can overtake the index injury never the opposite.

During the EU referendum campaign, there were many spurious overblown claims by leavers and remainers which ran fast and loose with the truth. Those scare tactics were but small fry, infinitesimally small fry, in comparison with the guff Markay and Owens are coming out with. For Peter Owens to create a policy to review injury awards and then to crow about the money he saved, whilst neglecting the laws broken and lives ruined, is an affront to truth and decency and reason.  It will cause suicides.  It may have already, we just don’t know all what happens after ‘they’ fire the gun at their target. No self-respecting citizen should put up with it.

We have a copy of Merseyside’s processes for the review of injury awards and it apparently relies heavily on a devoutly orthodox take on NAMF (now NWEF) guidance

(3 pages – hover cursor & navigate with bottom left arrows)

Advised not to have an age limit for holding reviews by a weasily solicitor plying his trade in Northern police force?  Don’t worry – have a limit anyway.   How can someone who has evidently heard of the word ‘discrimination’, even uttered by someone else, write such tosh?

The advice from the author of the NAMF guidance is that no upper limit should be used due to age discrimination. I have noted that some forces have considered using seventy years of age as an upper limit and to date Merseyside have used a ceiling of 65 years.

For the rolling review program, Merseyside policy ignores band one and focuses it’s attention more forcibly on those that cost the most.  Discrimination incarnate.

As previously reported injury award reviews have been prioritised with Band 4 reviews being undertaken first then Band 3 awards and finally Band 2. Band 1 awards are not subject of this review.

Of course, we regularly say that anything written by Nicholas Wirz automatically disqualifies itself. But it seems Merseyside take the spoutings of NAMF/NFEW that much further.  Take this rotten festering sore of a sentence found in page two:

When considering the implications of example 4 it is inevitable that a large proportion of ex-officers would have their injury awards reduced to Band 1.

Let us translate the above quote lifted from the policy.  They are saying if someone’s index injury has not improved, that if there are no jobs available that were not available or if no new skills are evident, but the former officer has developed cancer, then Merseyside are happy to reduce them to a band one.  Sod the consequences.

What about our more likely, real-life example that avoids Merseyside’s cliff-edge.  A former officer retired with physical injuries who developed a mental illness due to the adverse psychological effects resulting from being physically injured and disabled.  Over the years their injuries got somewhat better but their mental illness progressively worsened.  Should they be reduced to a band one by Merseyside?  Their disability is still a duty injury – they wouldn’t have mental health problems if they had not been injured on duty. It would be unlawful to reduce someone in such a situation, just as it is morally corrupt to reduce an injury pension because a person has cancer or Parkinson’s disease.  Why would Markay and Owens take a different position? … because they are delusional about the Regulations and blinded by their objective to save money, that’s why.

The 2010 Doubtfire (& Williams) judicial review sheds light on the truth that the focus is always on the disability, not the diagnosis.  We will return to Doubtfire & Williams (a dual hearing involving West Mercia and, quelle surprise, Merseyside) in another blog post.

What about the acquisition of skills being a two-way street?  As we mentioned above, Merseyside states that new skills can improve job prospects and thus earnings but nowhere does it say that the loss of skills, by being out of the job market, can reduce earning capacity.  Why is this?  Rhetorical question, of course.  It isn’t mentioned as this doesn’t allow Owens & Markay to work towards reducing all IOD pensioners to a band one.

Is anyone still in any doubt about the Mersyside’s nefarious position that reviews of degree of disablement are a cash-cow to recoup money? Look the last paragraph on page two.

In summary ten per cent of questionnaires sent out at this time have produced ongoing savings of approximately £30,000 per annum. [Exempt information section 40(2) Freedom of information Act, 2000, the personal data exemption].

We haven’t missed the stated implication that the questionnaire has led to the reduction, not the medical decision of a SMP.  Why employ a gun-for-hire SMP when a poxy and fallacious questionnaire combined with the stroke of Owens’s pen can do the dirty deed?

The policy sums up the elitism and arrogance and contempt for Regulations of those who just cannot accept that deserving people were given injury awards.

Wirz, Markay and Owens, and their coterie within the NFEW can’t get their heads around this. They are riddled with prejudice and are dismissive of the rights of disabled folk. They have produced policies and guidance which contravene the Regulations, and have done this not out of simple stupidity, but from a misplaced and wholly erroneous conviction that IOD pensioners need to be continually harassed in an attempt to reduce the impact of injury pensions on forces’ budgets.

Anyone with a brain can see that only a small minority of the people involved must actually believe the tripe that Merseyside uses to justify their position. They go along with it, for the sake of not poking their heads above the parapet. They value their jobs more than their conscience. Nor do those who are the named targets of our criticisms care to attempt a defence. They remain silent and acquiescent, for they dare not do otherwise. Our blogs remain unchallenged, for there is no riposte to the truth.

How can anyone with any knowledge of the Equality Act and the legal requirement for reasonable adjustments think that, just like the idiom of painting the Forth bridge, a future review can be scheduled immediately after the current one has finished?

Merseyside is disdainful of the law, and of the rights of disabled people:

On completion of this initial phase of injury award reviews the process will recommence and will be ongoing with new cases that have received awards in the preceding two years and also the reviews conducted at the start of this process will be due their next review.

Hogwash.

We now must speak in the language of revolution.  We must ‘rise up’. There is need for a ‘revolt’, by ‘force of argument’, against the dangerous madness of the policy espoused by Merseyside.

NARPO and the Police Federation need to take Merseyside to task and join with IODPA in condemning the concept of regular, repeated reviews.

IODPA’s advice to any IOD pensioner caught up in a revolving review program is they should seek redress in an Employment Tribunal for post-employment disability discrimination and subsequent victimisation.

Natural Justice: The Rule Against Bias

Natural Justice: The Rule Against Bias

Injustice anywhere is a threat to justice everywhere. ~Martin Luther King, Jr.

British justice, the sense of fair play and the British Police Service have been the envy of the world. It is somewhat ironic that injured Police officers who have lost their police careers have to fight to be treated fairly, and be treated in keeping with the scope and intentions of the Regulations, which are there to compensate them for their injury and consequent loss of earning capacity.

The fight over the 15 years has culminated in over 22 High Court Judicial reviews and 43 Pension Ombudsman decisions regarding  maladministration of Police Injury Awards. British Justice still lives within our Courts and arbiters. It is of little surprise that the decisions overwhelmingly remedy the injustices former injured officers have endured.

The rules of natural justice

The rules of Natural Justice require all trials and hearings to be rooted in fairness . Following the case of Re HK (an infant) (1967)  the phrase “act fairly” was established making it incumbent on all  decision makers to act fairly. There are two parts to the rule:

  1. Audi alteram partem – “hear the other side” or “let the other side be heard as well.”
  2. Nemo judex in res sua – “no one  should be a judge in his own cause” – A pecuniary interest in the outcome of the decision gives rise to automatic disqualification. Also known as the rule against bias.

Following on from our blog “The Judicial Fallacy” we need to explain that the term judex (simply translated as judge) within Nemo judex in res sua  extends beyond judges to all statutory decision makers. This, just in case some SMPs and Mr Wirz start to believe their own hype that they are judges.

Notwithstanding copious direction from the Courts, some scheme managers and SMPs have shown themselves unable, or perhaps unwilling, to apply the Regulations. It is because of this entrenched mindset we at IODPA thought it would be of benefit for decision makers to be educated in respect of their responsibilities.

Whilst the Home Office guidance 46/2004 has been deemed unlawful and withdrawn following the High Court decisions in Laws and Simpson it demonstrates   how the Audi alteram parterm rule can apply.

Some Police Pensions Authorities (Chief Constables), HR, and SMPs  fervidly embraced the unlawful aspects of this guidance and some still do. Despite a legion of in-house lawyers and CIPD qualified HR personnel, no one thought that guidance is unnecessary if the Regulations are followed.  Guidance only becomes a thing if the intention is to bend the rules.  Just as Al Qaeda’s Management of Savagery is a manual for how to wage war by creating religious resentment and violence, guidance has historically been used to square a circle, to give excuses to override Holy text and provide bureaucrats a means to blindly follow orders.

The law is the form of the Police Injury Benefit Regulations and case law.  This simplicity had to be spelled out in the Simpson case ruling that PPAs can’t usurp the law through guidance !!! Luckily, it wasn’t all 43 Police Pension authorities that wandered, zombie like, into the trap.

So with the advent of the Home Office guidance and a stroke of a pen many pensioners were dropped to Band 1. The decision makers’ minds were closed, the poor pensioners weren’t allowed to make representation or even have their voices heard… Audi alteram partem. This struck to the heart of fairness, our Courts and Judges world renowned for their sense of justice did not allow this dreadful state of affairs to triumph.

We at IODPA have raised previously concerns about guidance emanating from the National Attendance Management Forum. (Now re-branded as the National Well-Being and Engagement Forum – NWEF). We regard it as yet another crude attempt to usurp the Police Injury Benefit Regulations and case law. We regard the NAMF guidance as a resurrection of the unlawful Home Office guidance. The NAMF guidance does not operate in a vacuum: understanding the context in which it operates is necessary. Re-branded, but with the same people at the helm, NWEF still holds regular meetings, but the fact that not all 43 forces subscribe to this forum or attend its meetings should tell the organisers something.

During NWEF events Nicholas Wirz tells the force Solicitors, FMAs, SMPs and HR minions that a pensioners doctor’s opinion cannot be relied on.

…It is also not uncommon for that specialist to be provided with the incorrect legal test, in which case their conclusions need to be treated with caution.[…] This can often be the case with reports produced by a treating physician in support of their patient…[]

A common occurrence is for the treating physician to “fudge” the issue(SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

This is nothing more than a shameful attempt to uniformly denigrate  good, honest, hardworking GPs who have witnessed the physical and mental health of their patients deteriorate, been involved in treatment plans and best placed to comment on the efficacy of them. These practitioners are always best placed to provide the definitive medical opinion.

However, Mr Wirz believes they are prone to provide false opinion. Really? So honest hard-working practitioners of medicine who are not paid by the PPA or the pensioner and who are bound by professional ethics are not to be relied on? What is it which drives Witz and his followers’ false belief that it is only the opinion of SMP’s which is sacrosanct or unbiased? That Wirz saw fit to make such a telling observation reveals that his mind is crammed full of both conscious and unconscious bias.

The SMPs are being paid for by the PPA and are being trained by Wirz. Anecdotal evidence and feedback we’ve had from members is that SMPs have quoted Home Office guidance as well as NAMF guidance. Well, if they are approaching the assessment with a closed mind then we would say that the pensioner will not be heard as the SMP has closed his/her mind to any other view than that of the NAMF guidance.

 Now turning to the rule against bias  nemo judex in res sua Lord Denning summarised this rule in Metropolitan Properties Ltd Lannon [1969] CA.

“The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.”

The term judge incorporates decision makers such as SMP’s and PMAB members, just in case you missed it earlier decision makers and not Judges in the Judicial sense. So if we surveyed right-minded people, would they think that pensioners were not only treated fairly but seen to have been treated fairly?

We think not for the following reasons :-

NAMF training and guidance – So the delegates consist of FMAs, SMPs, PMAB members,  force Solicitors and HR personnel. We’ve made it plain that the NAMF guidance has no basis in law, yet the principles incorporated within this document are being mis-sold as the lawful regulatory framework to SMPs. We also believe it is inappropriate for  SMPs who are meant to act as independent decision makers  to attend such events and then apply these principles. What if the Police Federation held such events and invited medical experts they instruct, how would you feel about that Mr Wirz?

The fact is not lost on us that HML, the company who manage the PMAB process, no longer attends NAMF meetings, why not? Has the penny dropped that such conduct is not acceptable ?

Some PMAB members far from being fair and open minded are in fact closed-minded acolytes of Mr Wirz and NAMF. Did they think that if HML just slipped out no-one would notice? Especially not the injured pensioners who have been experienced and trained investigators.

SMPs  and the  HR partnership – The late Dr Sampson and Mr Steven Mitchell from Nottinghamshire HR have jointly given presentations. We would invite you to have a look.  Both are eager to  convey how much money can be saved.

No onlooker would conclude that this appropriate. What if Dr Sampson hadn’t saved Nottinghamshire Police money, would he have lost his lucrative contract? Well we need to go to Avon and Somerset to show what happens when SMPs can’t be tamed.

The Avon and Somerset PCC’s Agenda – Mountstevens thinks those that have lost their Police careers and their health by putting themselves in harms way are a financial burden. She does not care about the moral or legal obligations enshrined in the Police Injury Benefit Regulations.

Don’t take our word for it,  she has been caught out writing to the Policing minister,  take a peek. The then Policing Minister (Damian Green) has pointed out the obligations of police pension scheme managers are enshrined in law, and gives his direct opinion that it is right there should be provision for police officers injured in the line of duty. His letter can easily be read as a coded message to scheme managers: don’t approach the administration of injury awards from the viewpoint of looking to save money.

Selection and Deselection –We at IODPA do not believe it coincidental that honest SMPs, such as the fair and just Dr Jo Judge (now retired Dyfed Powys FMA used briefly by Avon and Somerset) who have retained officers on Band 4, i.e. the most disabled and thus the most costly, are no longer engaged as SMPs by forces who want to reduce their financial commitments.

Those that can be enticed to adopt the PCC’s mantra are handsomely awarded such as FMA Dr Bullpitt as well as Dr Johnson SMP. Dr Bullpitt has also lobbied the GMC and Home Office to be exempted from GMC guidance. Really??

Dr Bullpitt’s devious wish to remove the protections of GMC guidance for a hand-picked and specially chosen disabled few, just because they are members of the public in receipt of injury awards, is of serious concern.  It goes against equality law, human rights legislation and codes of conduct. All professions are subject to regulation be it Police Officers through the Conduct Regulations, Solicitors via the Solicitors Regulatory authority, even Judges and MP’s are not exempt, that’s what you expect in a fair minded democracy, no one is above oversight. Yet Dr Bullpitt wants this exemption… why ?

So would the right-minded think police pensioners are treated fairly ? We think not.

The rule against bias compels decision makers to  leave aside prejudices and preconceptions In the case of  R v Bingham Justices ex p Jowitt (1974) QBD a  magistrate said

“My principle in such cases has always been to believe the evidence of the police officer.”

We believe this is no difference to SMPs approaching their duties under the influence of NAMF guidance, for example dismissing the pensioner’s specialist’s or GP’s opinion.

The test of apparent bias has  developed through  case law. In R v Barnsley Licensing Justices, Ex p Barnsley and District Licensed Victuallers’ Association [1960], Devlin LJ recognised:

“Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so”.

Lord Denning MR, in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] recognised:

“The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand . . . “

In R v Sussex Justices Ex parte McCarthy (1924) KBD the Defendant  appeared before the justices on a charge of dangerous driving, the clerk to the court was acting in parallel civil proceedings for  the other party.  This case led to the  celebrated maxim:

 it [… ] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

During the inquest of “The Marchioness” disaster, the coroner was heard to have  described some of the victims relatives in attendance as “unhinged” and “mentally unwell” indicating  the presence  of unconscious bias. A different  coroner was required to resume the decision making process R v Inner West London Coroner ex parte Dallaglio (1994) “The Marchioness.”

We know through anecdotal evidence and having seen the SMP reports first hand of such bias. Comments such as ill-health retirement being a tactic purely in pursuance of a favourable exit packages, physical injuries being psychosomatic and ignoring specialist medical evidence are not uncommon. Dr Nightingale and Dr Willy Cheng are particularly adept at this malevolent projection. Dr Cheng goes the extra mile and repeats these attacks in PMAB hearings seemingly without challenge.

In R v Gough [1993], Lord Goff  formulated the test for apparent bias in the following terms:

 “the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias . . .”.

The accepted test for apparent bias is from Porter v Magill [2001] HL, para 103:

“whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

We at IODPA have been asked to demystify some of the hocus-pocus which some police pension authorities rely on. We hope that by showing how, through the resurrection in the form of NAMF guidance, erroneous Home Office guidance 46/2004 has, brought about a fresh wave of pension maladministration. Lazy, incompetent, HR managers with only scant knowledge of the Regulations, and no familiarity with the basic concepts of justice within the law, as have been briefly set out here, are tempted to turn to the chocolate teapot uselessness of guidance issued by people who seem to be incapable of freeing themselves of the most pernicious forms of bias.

We hope that this whistle-stop tour through the law will help in the demystification. The Chief architect of the NAMF guidance, Mr Wirz, is a lawyer (albeit not a very good one) and he more than most will come to realise that it is through the protections which the law provides to the victims of malpractice, we will continue to forcibly remind him and the NAMF acolytes of their shortcomings.

Mr Wirz we would like to remind you of another  legal maxim:

 “The law is a shield and not a sword”.

Whilst you wrongly quote and twist law to use it as a sword against police pensioners we will use the law as a shield. Natural Justice underpins Judicial Review and at present count it’s the Police Pensioners who are winning countless Judicial Reviews.  Does that not tell you something, Mr Wirz?

We will continue to educate and enlighten police pensioners to their rights and point out your wrongs, in right is might!

 

 

 

 

 

This group of police force HR managers, occupational health personnel and the odd force solicitor is supposedly concerned in its quarterly meetings with keeping the police workforce fit and well. The clue is in the name - it is supposed to concentrate on people who work. However, it spends time also considering matters relating to disabled former officers. Quite what legitimates this group's interest in disabled private citizens who are in receipt of a police injury pension is a mystery.

The mystery deepens when it is revealed that the Home Office and representatives of the commercial company which has the contract to run Police Medical Appeal Boards, HML, also regularly appear on the list of delegates. The mystery morphs into something smelling of conspiracy when the delegate list is entirely absent of any representative of any of the people whose lives the NAMF seeks to affect. There is nobody from the Police Federation, nor from NARPO, nor anyone from any disablement charity, mental health association, etc. etc. In other words, the NAMF is a one-sided talking shop. Even at that level it is not properly representative of all police forces, for we note that there are rarely, if ever, delegates present from every area.

Those of us with long memories, recollect that the Home Office claimed that it had conducted what it called a 'survey' of all forces, way back in 2004, prior to finalising its unlawful guidance issued as Annex C to HO circular 46/2004. The HO claimed that their survey showed that it was common practice for forces to review the degree of disablement of injury-on-duty pensioners once they reached what would have been normal force retirement age. This is what the guidance said:

'This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force. A recent survey found that practice in this area was diverse. Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached - others continued to pay benefits at the same rate until the death of the Officer concerned.'

The plain truth, revealed through Freedom of Information Act requests, was that there never was any survey. The HO later tried to claim that the bold, unmistakable claim made in its guidance resulted from 'round the table discussions' at meetings of the NAMF. Yet nothing even hinting at such discussions appeared in the minutes and the HO could not produce a single scrap of data nor any record or any other evidence to show quite how it had come to the conclusion that some forces automatically reduced benefits to the lowest band at what would have been normal force retirement age.

Shockingly, further research revealed that absolutely no forces, not a single one out of the 43 in England and Wales, had ever reduced benefits to the lowest band at what would have been normal force retirement age, automatically or otherwise. The Home Office was caught out in a blatant lie. It was a lie intended for one purpose only - its actually intent was to give an air of normalcy to the huge change in practice which the HO wished to bring about.

This astounding act by a Government department tells us what the NAMF was then, and remains now. It's objective in so far as police injury on duty pensions is concerned, is to subvert the law of the land. The law cannot be changed retrospectively, so the inner circle work to find ways to unlawfully manipulate it through influencing gullible HR managers, and by training carefully selected corruptible SMPs how to refuse grant of an injury award and how to conduct reviews which reduce the degree of disablement of retired officers.

And so the machinations of the NAMF continue...

This group of police force HR managers, occupational health personnel and the odd force solicitor is supposedly concerned in its quarterly meetings with keeping the police workforce fit and well. The clue is in the name - it is supposed to concentrate on people who work. However, it spends time also considering matters relating to disabled former officers. Quite what legitimates this group's interest in disabled private citizens who are in receipt of a police injury pension is a mystery.

The mystery deepens when it is revealed that the Home Office and representatives of the commercial company which has the contract to run Police Medical Appeal Boards, HML, also regularly appear on the list of delegates. The mystery morphs into something smelling of conspiracy when the delegate list is entirely absent of any representative of any of the people whose lives the NAMF seeks to affect. There is nobody from the Police Federation, nor from NARPO, nor anyone from any disablement charity, mental health association, etc. etc. In other words, the NAMF is a one-sided talking shop. Even at that level it is not properly representative of all police forces, for we note that there are rarely, if ever, delegates present from every area.

Those of us with long memories, recollect that the Home Office claimed that it had conducted what it called a 'survey' of all forces, way back in 2004, prior to finalising its unlawful guidance issued as Annex C to HO circular 46/2004. The HO claimed that their survey showed that it was common practice for forces to review the degree of disablement of injury-on-duty pensioners once they reached what would have been normal force retirement age. This is what the guidance said:

'This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force. A recent survey found that practice in this area was diverse. Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached - others continued to pay benefits at the same rate until the death of the Officer concerned.'

The plain truth, revealed through Freedom of Information Act requests, was that there never was any survey. The HO later tried to claim that the bold, unmistakable claim made in its guidance resulted from 'round the table discussions' at meetings of the NAMF. Yet nothing even hinting at such discussions appeared in the minutes and the HO could not produce a single scrap of data nor any record or any other evidence to show quite how it had come to the conclusion that some forces automatically reduced benefits to the lowest band at what would have been normal force retirement age.

Shockingly, further research revealed that absolutely no forces, not a single one out of the 43 in England and Wales, had ever reduced benefits to the lowest band at what would have been normal force retirement age, automatically or otherwise. The Home Office was caught out in a blatant lie. It was a lie intended for one purpose only - its actually intent was to give an air of normalcy to the huge change in practice which the HO wished to bring about.

This astounding act by a Government department tells us what the NAMF was then, and remains now. It's objective in so far as police injury on duty pensions is concerned, is to subvert the law of the land. The law cannot be changed retrospectively, so the inner circle work to find ways to unlawfully manipulate it through influencing gullible HR managers, and by training carefully selected corruptible SMPs how to refuse grant of an injury award and how to conduct reviews which reduce the degree of disablement of retired officers.

And so the machinations of the NAMF continue...